National Insurance Company Ltd v. Sheeba and Others; National Insurance Company Ltd v. Appu.P.C and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 27TH DAY OF FEBRUARY 2020 / 8TH PHALGUNA, 1941** ## **MFA.No.60 OF 2019** **AGAINST THE ORDER IN ECC 309/2017 (OLD NO.ECC.3/2015) ON THE FILES OF THE COURT OF THE INDUSTRIAL TRIBUNAL AND EMPLOYEES COMPENSATION COMMISSIONER, TRIVANDRUM** ## **APPELLANT/2ND OPPOSITE PARTY IN ECC NO.309/2017:** **NATIONAL INSURANCE CO.LTD, DIVISIONAL OFFICE, ST JOSEPH BUILDING VAZHUTHACAUD,THIRUVANANTHAPURAM, ITS MANAGER, KOCHI REGIONAL OFFICE, SRI. LAWRENCE AUGUSTINE** **BY ADVS. SRI.P.G.JAYASHANKAR SHEBA RIVY SIMON KUM.P.K.RESHMA (KALARICKAL)** ## **RESPONDENTS/APPLICANTS AND 1ST OPPOSITE PARTY IN ECC NO.309/2017:** **1 SHEEBA, W/O LATE BABY JOHN, PUTHUVAL PURAYIDAM, KP XII/407, PAUTHIYOOR, POZHIYOOR, THIRUVANAANTHAPURAM, PRESENTLY RESIDING AT PALLIVILAKOM, PARUTHIYOOR POZHIYOOR P.O, THIRUVANANTHAPURAM-695513** **2 ERIC JOHN, S/O LATE BABY JOHN PUTHUVAL PURAYIDAM, KP XII/407, PAUTHIYOOR, POZHIYOOR, THIRUVANAANTHAPURAM, PRESENTLY RESIDING AT PALLIVILAKOM, PARUTHIYOOR, POZHIYOOR P.O, THIRUVANANTHAPURAM-695513** **3 SURLING, S/O LATE BABY JOHN, PUTHUVAL PURAYIDAM, KP XII/407, PAUTHIYOOR, POZHIYOOR, THIRUVANAANTHAPURAM, PRESENTLY RESIDING AT PALLIVILAKOM, PARUTHIYOOR, POZHIYOOR P.O, THIRUVANANTHAPURAM-695513** **4 CELIN @ SERLIN, W/O MADIYAN PILLAI @ SURJITH, PUTHUVAL PURAYIDAM, KP XII/407, PAUTHIYOOR, POZHIYOOR, THIRUVANAANTHAPURAM, PRESENTLY** MFA 60&61/19 2 ||**RESIDING AT PALLIVILAKOM, PARUTHIYOOR,**| |---|---| ||**POZHIYOOR P.O, THIRUVANANTHAPURAM-695513**| |**5**|**MINI, D/O MADIYAN PILLAI@SURJITH,**| ||**PUTHUVAL PURAYIDAM, KP XII/407, PAUTHIYOOR,**| ||**POZHIYOOR, THIRUVANAANTHAPURAM, PRESENTLY**| ||**RESIDING AT PALLIVILAKOM, PARUTHIYOOR,**| ||**POZHIYOOR P.O, THIRUVANANTHAPURAM-695513**| |**6**|**BIJU, S/O SURJITH, KP 9/238,**| ||**PUTHUVAL PURAYIDAM, PARUTHIYOOR,**| ||**POZHIYOOR PO, THIRUVANAANTHAPURAM 695 513**| **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27-022020, ALONG WITH MFA.61/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MFA 60&61/19 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 27TH DAY OF FEBRUARY 2020 / 8TH PHALGUNA, 1941** **MFA.No.61 OF 2019** **AGAINST THE ORDER IN ECC 132/2015 DATED 28-12-2018 ON THE FILES OF THE INDUSTRIAL TRIBUNAL AND EMPLOYEES COMPENSATION COMMISSIONER, KOZHIKODE** ## **APPELLANT/2ND OPPOSITE PARTY IN ECC NO.132/2015:** **NATIONAL INSURANCE CO. LTD, KALPANA SHOPPING COMPLEX, MAIN ROAD, KALPETTA, REPRESENTED BY ITS MANAGER, KOCHI REGIONAL OFFICE, SRI. LAWRENCE AUGUSTINE** **BY ADVS. SRI.P.G.JAYASHANKAR SHEBA RIVY SIMON KUM.P.K.RESHMA (KALARICKAL) STEFIN THOMAS** ## **RESPONDENTS/APPLICANT AND 1ST OPPOSITE PARTY IN ECC NO.132/2015:** - **1 APPU.P.C, AGED 22, S/O. CHANDRAN, PEEDIYEKKAL HOUSE, THAZHE ANGADI, MANANTHAVADY POST, WAYANADU-670 645** - **2 KRISHNAMOORTHY, S/O. SELVAN, MOOLANCHIRA COLONY, MOOLANKAVU POST, SULTAN BATHERY, WAYANADU-673 592** ## **R1 BY ADV. SMT.CELINE JOSEPH** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27-022020, ALONG WITH MFA.60/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MFA 60&61/19 4 ## **JUDGMENT** These two appeals have been filed by the National Insurance Company Ltd ((hereinafter referred to as 'the Company' for short), impugning the Awards of the Industrial Tribunal and Employees Compensation Commissioner ('Compensation Commissioner' for brevity) in two different cases as per which, the claimants therein have been awarded certain sums under the provisions of the Employees Compensation Act, 1923 ((hereinafter referred to as 'the Act' for short). 2. I am considering these appeals jointly, not because they are factually connected, but because the legal issues impelled therein are analogous, if not identical. 3. The appellant-Company submits that they have filed these appeals without contesting the factual factors and circumstances involved, but solely on the ground that even if they are MFA 60&61/19 5 conceded, no liability would have been mulcted on them on the basis of the Motor Vehicle Insurance Policies, obtained by the respective owners of the vehicles involved, under the provisions of Section 147 of the Motor Vehicles Act. They say that even if the accidents are admitted and even if the relationship between the claimants and the owners of the vehicle are taken for granted, the liability under the Employees Compensation Act could not have been mulcted upon the insurer, since they are not obligated, under Section 147 of the Motor Vehicles Act, to pay any amounts to any person other than the drivers of the vehicles. They assert that even going by the impugned judgments, the victims have not been found to be drivers of the vehicles at the time of accident but only 'helpers'. The appellant, thus prays that the impugned Awards be set aside to the extent to which it directs the appellant, being MFA 60&61/19 6 the insurer, to pay the amounts found against the employer. 4. Sri.P.G.Jayashankar, learned Standing Counsel appearing for the appellant in both these cases, adds to the afore narration of facts by saying that even a quick glance through Section 147 of the Motor Vehicles Act, 1988, (MV Act for short), would make it ineluctable that the policies in these cases do not cover liability in the case of death or injury arising out of and in the course of employment except in the case of a person engaged in driving the vehicle; or if it is a public service vehicle, a person engaged as a conductor; or if it is a goods carriage, a person being carried therein. He says that even going by the conclusions of the Compensation Commissioner, the victims in these cases, one of whom unfortunately died and the other who suffered bodily injury, were engaged by the owners of the vehicles involved MFA 60&61/19 7 only as 'helpers'; and therefore, that the appellant would be under no legal obligation, as per the admitted insurance policies, to cover their claims under the Employees Compensation Act. Sri.P.G.Jayashankar says that these aspects have not been considered by the Compensation Commissioner while passing the impugned orders. 5. In response, Smt.Celine Joseph, learned counsel appearing for the respondents in MFA No.61/2019, submits that the afore submissions of Sri.P.G.Jayashankar are not tenable, because it has been decided by a Full Bench of this Court in the **United Insurance Company Ltd, Kochi** ## **v. P.R.Surendran and Others [2014(4) KLJ 751]** that if an employee, in discharge of his duties, is engaged in driving a vehicle as permitted by his employer-irrespective of whether he is employed as a driver or not-he would be entitled to the coverage under the proviso to Section 147 of the Act, provided the accident occurred in MFA 60&61/19 8 the course of his employment. She asserts that the declaration of law by the Full Bench is to the effect that it is not a requirement that the claimants must have been employed as 'drivers' but that if they are found to have been engaged to perform such duties with the concurrence of the employer, then they would be entitled to the benefits of the Insurance Policy. She thus prays that these appeals be dismissed. 6. When I consider the afore submissions made at the Bar and go through the materials available on record, as also the impugned orders of the Compensation Commissioner, it is indubitable that the said Court has not considered any of these aspects, particularly with respect to the application of Section 147 of the Motor Vehicles Act, but has merely-in a rather mechanical fashion-concluded that since the vehicles are covered by valid insurance policies, the appellant-Insurance Company is MFA 60&61/19 9 liable to pay the eligible amounts under the Act. 7. I am afraid that this was not sufficient in the facts involved in these matters, since a comprehensive evaluation of the impact of Section 147 of the Motor Vehicles Act ought to have been made by the Compensation Commissioner, especially in view of the judgment of the Hon'ble Supreme Court in **Ramshray Singh v New India Assurance Co. Ltd and** **Others [2003 AIR SCW 3601]** , wherein, referring to the proviso to Section 147B of the MV Act, their Lordships have affirmatively declared that a 'cleaner' or a 'khalasi' can be brought under the ambit of a 'driver', as defined in the said Section if the factual circumstances to such effect are demonstrated; and therefore, that unless it is so proved, the Insurance Company cannot be mulcted with liability. 8. When I say as above, it must not be MFA 60&61/19 10 misunderstood that I am concluding one way or other regarding the liability of the Insurance Company in these cases; but only that the Compensation Commissioner ought to have considered these legal aspects also before having entered into conclusions as regards their liability. In the absence of any such consideration having been made by the Compensation Commissioner and in the light of the fact that it has concluded-in a rather automaton manner-that merely because the vehicles involved were covered by insurance policies, the appellant-company is liable to honour the commitment of the insurer under the Act, I am certain that the said Court must reconsider these matters, taking note of the afore cited judgments, before entering into a final view regarding such liability. In the result, without entering into the merits of any of the contentions of the parties MFA 60&61/19 11 and without conclusively declaring either way as regards the liability of the appellant-company, I allow these appeals to the limited extent of remanding these matters to the Court of the Compensation Commissioner; with a consequential direction to the said Court to reconsider the sole issue as to whether, in these cases, the Insurance Company would be liable under the provisions of Section 147 of the Motor Vehicles Act. I make it clear that no other issue, either on facts or on law, will be decided by the Compensation Commissioner pursuant to this remit; and that this exercise shall be completed by the said Court, after affording necessary opportunity of leashing fresh evidence, including by producing and making other relevant documents, to both sides, as expeditiously as is, but not later than three months from the date of receipt/production of a copy of this MFA 60&61/19 12 judgment. In the nature of the circumstances that I have noticed in these cases, I do not deem it appropriate to make any order as to costs and consequentially, direct the parties to suffer their respective costs. ## **Sd/-** **DEVAN RAMACHANDRAN** RR **JUDGE** MFA 60&61/19 13 ## APPENDIX OF MFA 61/2019 PETITIONER'S/S EXHIBITS: ANNEXURE A TRUE COPY OF THE STANDARD TWO WHEELER PACKAGE POLICY ISSUED BY THE APPELLANT COMPANY.